Pinsky v. Duncan

Decision Date25 April 1990
Docket NumberNo. 201,D,No. 89-7521,201,89-7521
PartiesRoland PINSKY, Jennie Pinsky, Eileen Fedowitz and Brian K. Doehr, Plaintiffs-Appellants, v. Richard K. DUNCAN, Joseph Golden Insurance Agency, Inc. and John F. Di Giovanni, Defendants, Richard K. Duncan and John F. Di Giovanni, Defendants-Appellees, State of Connecticut, Intervenor. ocket
CourtU.S. Court of Appeals — Second Circuit

Joanne S. Faulkner, New Haven, Conn., for plaintiff-appellant Brian K. Doehr.

Andrew M. Calamari, Bronx, N.Y. (Calamari & Calamari, of counsel), for defendant-appellee John F. Di Giovanni.

Henry S. Cohn, Hartford, Conn., Asst. Atty. Gen. of the State of Conn. (Clarine Nardi Riddle, Atty. Gen. of the State of Conn., of counsel), for intervenor.

Before NEWMAN, PRATT, and MAHONEY, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

In this appeal we consider the constitutionality of a statute that authorizes prejudgment attachment of real estate without prior notice and opportunity for a hearing, and without requiring the person obtaining

the attachment to post a bond. Conn.Gen.Stat. Sec. 52-278e(a)(1). Brian K. Doehr, a Connecticut landowner whose property was attached under this statute, appeals from a summary judgment of the United States District Court for the District of Connecticut, Warren W. Eginton, Judge, reported at 716 F.Supp. 58. Doehr claims that Sec. 52-278e(a)(1) is unconstitutional on its face. For the reasons below, we agree. We therefore reverse and remand for entry of judgment in favor of Doehr.

BACKGROUND

Attachment is an extraordinary prejudgment remedy that enables a plaintiff to secure a contingent lien on defendant's property at the inception of a lawsuit. It has traditionally served the dual purposes of compelling the appearance of a defendant who cannot otherwise be haled into court, and providing security for any judgment that plaintiff might ultimately recover. See 7 C.J.S. Attachment Sec. 4 (1980).

Under Connecticut law, a prejudgment attachment may sometimes be obtained after notice to defendant and a hearing, Conn.Gen.Stat. Secs. 52-278c, 52-278d, or, in some cases, even without notice and a hearing. Sec. 52-278e. In neither case is the plaintiff required to post a bond or other security for the payment of damages the defendant may sustain either if the attachment is wrongfully issued or the plaintiff's claim ultimately proves to be meritless. The portion of the statute governing the ex parte attachment of real estate provides in relevant part:

The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiff's claim and (1) that the prejudgment remedy requested is for an attachment of real property * * *.

In March 1988, John F. Di Giovanni commenced an action for assault and battery against Doehr in Connecticut Superior Court. At the inception of this lawsuit, and before any process had been served on Doehr, Di Giovanni applied for an attachment on Doehr's property in Meriden, Connecticut. As required by the statute, Di Giovanni submitted an affidavit in support of his application, in which he stated that "I was willfully, wantonly and maliciously assaulted by the defendant, Brian K. Doehr. * * * Said assault and battery broke my left wrist and further caused an ecchymosis to my right eye, as well as other injuries to my head, limbs and body. * * * In my opinion, the foregoing facts are sufficient to show that there is probable cause that judgment will be rendered for the plaintiff." Based on these submissions, the state court authorized an attachment on Doehr's home to the value of $75,000.

Rather than moving to dissolve the attachment, as he was entitled to do under the statute, Sec. 52-278e(c), Doehr filed the present action in federal district court, alleging that Connecticut's ex parte attachment procedure violated his constitutional right to due process. On Di Giovanni's motion for summary judgment, the district court held that Sec. 52-278e is constitutional because "it requires the prejudgment remedy to be issued by a judge", " 'can be invoked only by a verified affidavit that contains factual, rather than merely conclusory, supporting allegations' ", quoting Fermont Div., Dynamics Corp. of America v. Smith, 178 Conn. 393, 397, 423 A.2d 80 (1979), and provides for a "prompt post-seizure hearing" at which the property owner may challenge the attachment. 716 F.Supp. at 60. Doehr now appeals that ruling.

Since the constitutionality of a state statute "affecting the public interest is drawn in question" by this lawsuit, the district court was required to "certify such fact to the attorney general of the State" for the purpose of allowing the state to intervene on the constitutional issue. 28 U.S.C. Sec. 2403(b). Although the district court failed to follow this procedure, we invited the state to file an intervenor's brief in this appeal, consistent with our resolution of a similar problem in Merrill v. Town of Addison,

63 F.2d 80, 82-83 (2d Cir.1985). The state elected to intervene, and we give careful consideration to its arguments in this decision.

DISCUSSION
A. Deprivation of a Protected Property Interest?

As a threshold matter, we must determine whether the "seizure" at issue in this case--a nonpossessory attachment of real estate--deprives the owner of a significant property interest within the meaning of the fourteenth amendment. Di Giovanni argues that our decision on this point is controlled by the Supreme Court's summary affirmance of Spielman-Fond, Inc. v. Hanson's, Inc., 379 F.Supp. 997 (D.Ariz.1973) (three-judge court) (per curiam), which held that "the filing of mechanic's and materialmen's lien does not amount to a taking of a significant property interest". Id. at 999, aff'd mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). However, notwithstanding the limited precedential value of a summary affirmance, see, e.g., Tulley v. Griffin, Inc., 429 U.S. 68, 74, 97 S.Ct. 219, 223, 50 L.Ed.2d 227 (1976), we note that the mechanic's lien statute upheld in Spielman-Fond required the creditor to have a pre-existing right to the property, whereas Connecticut's attachment procedure is available in a variety of contexts, including the present case, to individuals having no preexisting interest in the property to be attached.

Moreover, although an attachment of real estate does not deprive the landowner of the use and possession of his property, and thus does not amount to a "seizure" in the literal sense, it nevertheless has a significant impact on the owner's ability to exercise the full scope of his property rights. An attachment not only impairs the marketability of the real estate, but also may harm the owner's credit rating, and may prevent him from using the property as collateral for a loan. Even if short-lived, these effects are certainly worthy of due process protection. See Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972) ("The Fourteenth Amendment draws no bright lines around three-day, 10-day, or 50-day deprivations of property"). Consequently, we hold that a nonpossessory attachment of real estate deprives the owner of a constitutionally protected property interest under the fourteenth amendment. Accord Shaumyan v. O'Neill, 716 F.Supp. 65, 77-79 (D.Conn.1989); MPI v. McCullough, 463 F.Supp. 887, 901 (N.D.Miss.1978); Terranova v. AVCO Financial Servs., 396 F.Supp. 1402, 1406-07 (D.Vt.1975) (three-judge court); Hutchison v. Bank of N.C., 392 F.Supp. 888, 894 (M.D.N.C.1975) (three-judge court); Bay State Harness Horse Racing & Breeding Assn. v. PPG Indus., Inc., 365 F.Supp. 1299, 1304-06 (D.Mass.1973) (three-judge court); Gunter v. Merchants Warren Nat'l Bank, 360 F.Supp. 1085, 1090 (D.Me.1973) (three-judge court); Clement v. Four N. State St. Corp., 360 F.Supp. 933, 935 (D.N.H.1973) (three-judge court).

B. Ex Parte Attachment.

Doehr argues that Sec. 52-278e(a)(1) is invalid, first, because it dispenses with prior notice and opportunity for a hearing even in the absence of exigent circumstances. A "root requirement" of due process is the right to a hearing before being deprived of a significant property interest unless the state demonstrates "some valid governmental interest * * * that justifies postponing the hearing until after the event." Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) (footnote omitted); see also United States v. Premises & Real Property at 4492 S. Livonia Rd., 889 F.2d 1258, 1263 (2d Cir.1989). Thus, in Sniadach v. Family Finance Corp., 395 U.S. 337, 339, 89 S.Ct. 1820, 1821, 23 L.Ed.2d 349 (1969), the Court emphasized that state garnishment procedures must ordinarily provide for a pre-deprivation hearing except in situations "requiring special protection to a state or creditor interest". In Fuentes the Court made it clear that the type of "extraordinary circumstances" that warrant postponing the hearing "must be truly unusual", such as the need "to meet the needs of a Although the Court later upheld a Louisiana sequestration statute that authorized the seizure of personal property without notice and opportunity for a hearing, see Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974), the application of that statute was explicitly limited to unusual situations where "it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action." Id. at 605, 94 S.Ct. at 1899. Because the creditor in Mitchell claimed a preexisting right to consumer goods held by the debtor, and because...

To continue reading

Request your trial
27 cases
  • McCutcheon and Burr, Inc. v. Berman
    • United States
    • Connecticut Supreme Court
    • May 7, 1991
    ... ... Mase, 11 Conn.App. 289, 293-94, 526 A.2d 7 (1987), citing City National Bank v. Davis, 181 Conn. 42, 45-46, 434 A.2d 310 (1980) ... In Pinsky v. Duncan, 898 F.2d 852, 854 (2d Cir.), modified, 907 F.2d 17 (2d Cir.), cert. granted sub nom. Connecticut v. Doehr, --- U.S. ----, 111 S.Ct. 42, ... ...
  • Diaz v. Pataki, 03 Civ. 10194(SHS).
    • United States
    • U.S. District Court — Southern District of New York
    • April 26, 2005
    ...is binding upon this Court. See Hicks v. Miranda, 422 U.S. 332, 343-44, 95 S.Ct. 2281, 45 L.Ed.2d 223; Pinsky v. Duncan, 898 F.2d 852, 859 (2d Cir.1990) (Mahoney, J., concurring). In Williams, the Connecticut Supreme Court had upheld the constitutionality of that state's lis pendens statute......
  • Connecticut v. Doehr
    • United States
    • U.S. Supreme Court
    • June 6, 1991
    ...that do not easily lend themselves to documentary proof, see id., at 609-610, 94 S.Ct., at 1901. Held: The judgment is affirmed. 898 F.2d 852 (CA 2 1990), Justice WHITE delivered the opinion of the Court with respect to Parts I, II, and III, concluding that: 1. Determining what process must......
  • Qsp, Inc. v. Aetna Casualty & Surety Co.
    • United States
    • Connecticut Supreme Court
    • June 5, 2001
    ... ... See Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52 (1983) ; see also Pinsky v. Duncan, 898 F.2d 852, 858 (2d Cir. 1990) ("[w]hen a lawsuit ends in a negotiated settlement or compromise, it does not terminate in the ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT